Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1887-05-19


CLARK vs.. Henry L. Ohurchman, BENJAMIN
Nieios and Z. q. Bradford, Esqs.. for the
plaintiff, and Anthony Higgins, Esq, for
In opening tor the plaintiffs Mr.. Nields
stated that Mrs, Emma l.. Clark owned n
Iarm In White Clay Creek hundred, Dor.
9ering on the Qhristiana creek, and that
Henry Il. Churthman owned an adioin-
ing farm. Mrs. SClark's farm largely com
prised low and meadow land. In tho win.
ter or spring Of 1885 Mr.. Ohurchman cut
the creek bank in front of his farm, and
allowed the meadow lands of Mrs. Olark,s
farm TO be flooded. He said the bank
cut by MIR. Qhurohman had been in exist
ehee from time immemorial, and that
the defendant had no right TO emf II.
The farm had been owned for ten
years or more by Philip Il. Clark. who
bought II for $50 900, but in 1884 il was
sofa at sheriff's sale and purchased by his
wife, Mrs. Emma A. CLARK. Mr.. Niolda
claimed that MIR. Churchman cnt the
nank for the express purpose of "drown.
Ing" the Clark farm and driving the
owners away. By the flooding Mrs.
CLARK was deprived Of the use of the farm
Ior tne entire season, and the land dete-
riorated so much in value that it subse.
quently sold for only 5000. Mr..
Ohurchman refused to allow Mrs. CLARK
70 go on his prenises to repair tie cut
The damages in the case are laid ne
| $25, 900.
Ex-Sherif Abraham Cannon was first
called. He said he will be SO years Of
age in September next, has resided in
New Castle county for go years, and for
60 years in the neighborhood of Stanton.
he knew the CLARK and Churchman farms
WE'LL and said the banks in front of them
had existed since his earliest recollection,
David Morrison, 70 years old next Sep.
TENDER, said he had knowledge of the
bank for go years.
Josiah Lukens, 10 years old, knew of
the banks for at least 40 years.
John Curtis CLARK, son Of the plaintiffs,
testified that there were about 200 acres
OF meadow land on his mothers farm. He
gave, in detail, the effect of the overflow
OF this land, caused by the cut in the
bank made by Mr.. Churchman. The
land was rendered partially yalueless.
Before this the meadow usually cut
$50 tons of hay per season and
furnished good pasturage for 30 head of
| cattle on 50 acres fenced of for this pur-
pose. He know of the banks for about 10
years they protected the farms from the
waters Of the creek He was tenant of
the farm for awhile.
The examination and cross-examination
of this witness in relation to the extent
and nature of the damage continued until
IL 90 O'Clock, when court adjourned until
8 o'clock, p. m.
In the case OF Philip Il. and Emma A,
Clark vs.. II. L. Ohurchman, in the after
noon, VIM. A. KINNEY, civil engineer, ex-
planned plot of the Clark and Church.
man farms, prepared by him, showing
the cut in the river bank, the submerged
meadow land and other points.
William +. Smalley testified that Mr..
Churohman had told him that he would
not allow CLARK to close the cut in the
bank or join it with Clark's bank, because
he considered wet bank much more
durable than dry one.
Alexander Eyerson testified TO having a
similar conversation with Churchman.
David Appleby testified that the market
price of hay in 1885 (the year the Cla-k
farm was fooded) was $lS to $40 per
ton. He had hauled hay from the CLARK
farm in the years 1S75-'6-'7 and Inter,
until Mr.. Olark's son took charge of the
farm. The hay he hauled was in part
good, and partly inferior; the good hay
would sell for $lS per ton. Some years
more than nne-half of the hay would be
good, and other years less. Some of the
hay sold as low as So per ton and some
for $12.
Thomas Appleby said he lived on the
CLARK farm in 1879, and that the meadow
land produced crops Of good timothy hay.
He raised about two tons of hay to the
acre that year for the first crop and about
a ton 10 the acre for the second crop. He
pastured rs head of cattle and about 18
horses on the meadow. He received 81
per week for each of the horses he took to
pasture.
Franklin b. Cotton testified that he
took the contract for making the cut in
Churchman'S bank. The cut was 30 feet
wide and II feet deep, reaching Al feet
below low water mark.
Thomas P. Lyman, who has lived in
the neighborhood for 20 years, testified
| to the existence of the hank during this
time until it was cut by Mr.. Ohurchman.
After this the water flooded the CLARK
farm at each high tide.
Harvey Lyman testified that prior
TO the cut in the creek bank he considered
| the meadow land of the Clark farm the
most valuable part Of the farm. After
| the cut il was rendered yalueless, as it
was continually flooded and no crops of
hay could be raised.
Howard Flynn said he had converse
ton about the cut in the creek bank with
| Ohurchman, who said he would not allow
Clark to close it.
Edward Estlin testified that the cost OF
cutting and curing the hay on the Clark
farm and hauling it to Wilmington would
| be So to g.. 50 per ton. He farmed the
Clark place one year, and the hay crop
averaged about two tons to the acre of a
good article.
AT O'Clock court adjourned until 10
O'Clock yesterday morning.
AT the opening of the superior court
Yesterday, William O. Spruance, Esq,
of counsel for defendant In the case of
Joseph Ryan vs.. the Wilmington d.
Northern Railroad Company, asked for a
special Jury in the case, to be summoned
/ for next Monday. The request was
granted.
The case of Philip h. and Emma A.
I fbs I1tuE1 LIZ ShuAbahAhA Whp sASA
| resumed, and Robert Il. Morrison was
called for the plaintiffs. He said he had
known the CLARK and Churchman farms
for 40 years, and lived on the CLARK farm
from 1871 to 1873. He visited the farm
in 1883 and saw timothy grass growing
on the meadow. He was there in Novem-
Der, 1886, and found evidence of an
attempt to partially fill in the
ont in the bank. He also
made an estimate for CLARK for building
mn the bank as far as fast land, his bid
being $5 per rod for 800 rods, or 81 900.
Mr.. Uhurohman one time told him that
he did not want to Join with Clark in
filling up the cut in the bank or to have
ANYTHING to do with him. Mr.. Morrison
was cross. examined at great length in re-
lation to the details of the bank in dis
pute.
Franklin b. Cotton was called and
asked for his estimate OF the damage done
Mrs Clark's meadow land by the food in
1885. MIR. Higgins objected to the ques-
ton and the objection was sustained. lie
estimated that the cost of constructing
bank to protect the CLARK farm meadow
land at 30 $50.
David Walmsley, colored, was employed
ON the Clark farm for six years. In 1854
very fine crop of grass started on the
meadow, bat was somewhat damaged by
| flood. He said flood the following
wear broke the bank, and was engaged
in repairing the break when Mr.. CLARK
stopped the work, saying Mr.. Cburchman
was cutting the bank on the other side,
and IL would do no good to fix the breach.